MB1-00291

RPD File No. / No de dossier de la SPR : MB1-00291 MB1-00292 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Application to Vacate - Demande d'annulation Applicant(s) Minister of Public Safety and Emergency Preparedness Demandeur(e)(s) Respondent(s) XXXX XXXX Intimé(e)(s) XXXX XXXX Date(s) of hearing February 24, 2015 Date(s) de l'audience Place of hearing Montréal, Quebec Lieu de l'audience Date of decision April 24, 2015 Date de la décision and reasons et des motifs Panel Christian Boissonneault Tribunal Counsel for Me Patil Tutunjian Conseil(s) de l'intimé(e) / the respondent(s) des intimé(e)(s) Designated representative(s) N/A Représentant(e) désigné(e) Counsel for the Minister Jean-Denis Saint-Pierre Conseil du (de la) ministre REASONS FOR DECISION [1] The Minister of Public Safety and Emergency Preparedness (the Minister) is requesting, in accordance with section 109 of the Immigration and Refugee Protection Act (IRPA), the vacation of the refugee status granted on April 4, 2002, to XXXX XXXX and XXXX XXXX, both citizens of Iran. THE FACTS [2] The respondents arrived in Canada on XXXX XXXX, 2001, from the XXXX XXXX, at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX border crossing, and claimed refugee protection there. In their interview with the immigration officer, Mr. XXXX stated, among other things, that he had no criminal record, that he had never committed a crime, that he had never been the subject of a removal order in any country, that he arrived in the XXXX XXXX from XXXX on XXXX XXXX, 2001, that he did not have a passport to enter the XXXX XXXX, and that he had used a passport not belonging to him to enter the XXXX XXXX. [3] In his Personal Information Form submitted in support of his refugee protection claim dated August 13, 2001, Mr. XXXX states that he never committed nor was found guilty of a crime. He also claims to have never lived outside Iran nor travelled outside Iran prior to his travel to XXXX, XXXX and the XXXX XXXX in transit, and then Canada in 2001. [4] As for the reasons that led him to claim refugee protection, in his written narrative Mr. XXXX claims to have been threatened by his ex-spouse's family and to have had to leave his country out of a fear of reprisals. He allegedly met XXXX XXXX in XXXX 1999 and was in a romantic relationship with her until XXXX 2000, during which time he had sexual relations with her on a number of occasions, which is against religious and customary rules (sex is prohibited prior to marriage). In XXXX 2000, he allegedly met XXXX XXXX and began a romantic relationship with her. [5] In XXXX 2001, he allegedly asked XXXX to perform an XXXX XXXX at XXXX XXXX XXXX in order to avoid problems with her family members. XXXX allegedly agreed and XXXX XXXX XXXX. In XXXX 2001, the male respondent was allegedly threatened by one of XXXX's brothers, who had allegedly been informed that they had had premarital sex. On XXXX XXXX, 2001, the male respondent allegedly left Iran for XXXX, then XXXX on XXXX XXXX, 2001, then the XXXX XXXX XXXX XXXX on XXXX XXXX, 2001, before finally arriving in Canada on XXXX XXXX, 2001. He and his spouse, XXXX XXXX, claimed refugee protection in Canada upon arriving on XXXX XXXX, 2001. [6] The male respondent and his spouse were granted refugee status on April 4, 2002. [7] On April 24, 2003, the Canadian authorities received information that the male respondent (Mr. XXXX) had lived for several years in Japan before coming to Canada and that he had made up a story in order to obtain refugee status in Canada.1 [8] On September 18, 2003, Mr. XXXX became a permanent resident of Canada. [9] On February 12, 2008, the XXXX XXXX XXXX XXXX received a document from the XXXX regional court indicating that XXXX XXXX, a.k.a. XXXX XXXX, had been found guilty of an offence under the XXXX XXXX XXXX XXXX XXXX XXXX [XXXX XXXX XXXX] on XXXX XXXX, 1997, and sentenced to a prison term of XXXX XXXX XXXX XXXX XXXX.2 [10] On July 10, 2008, the Royal Canadian Mounted Police (RCMP) informed the Canada Border Services Agency (CBSA) of the outcome of a search carried out via Interpol. With the help of fingerprint comparisons, Interpol XXXX indicated that the male respondent was known to Japanese authorities and had a criminal record in Japan for XXXX offences, the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.3 [11] On XXXX XXXX, 2008, Citizenship and Immigration Canada (CIC) XXXX received a poison pen letter indicating that the male respondent (Mr. XXXX) was born in Iran on XXXX XXXX, 1969, that he comes from a poor background and that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXin Japan around 1990. Allegedly, he was arrested and sentenced to XXXX years in prison between 1996 and 1999, and after serving his sentence, XXXX XXXX XXXX XXXX XXXX. He allegedly returned to Japan using falsified documents and remained there for nearly XXXX XXXX, before returning to Iran and obtaining an XXXXvisa. He allegedly left Iran for the XXXX XXXX, and then Canada to claim refugee protection here in 2001. Lastly, it is alleged that in 2007, he was intercepted in XXXX while trying to travel to XXXX on a false XXXX passport in his name.4 [12] In September 2008 and over the following months, steps were taken by the CBSA to check the facts indicated in the poison pen letter received on XXXX XXXX, 2008. These steps resulted in confirmation that the male claimant had been arrested in 2007 in XXXX XXXX XXXX, for using falsified documents (use of counterfeit XXXX passport to travel to XXXX).5 [13] These steps also saw the CBSA obtain a copy of three April 2008 emails from Mr. XXXX,6 in which he states that he lived for several years in Japan in the 1990s and then decided to come live in Canada in 2001. He also states that he has a criminal record in XXXX and XXXX. [14] Iranian passport #XXXX, issued in the name of XXXX XXXX on XXXX XXXX, 2001, in XXXX and renewed in XXXX on XXXX XXXX, 2005, shows several entries and exits, including the following. The male respondent apparently left Iran on XXXX XXXX, 2001 (XXXX) and returned on XXXX XXXX, 2001. The male respondent apparently left Iran on XXXX XXXX, 2001 (XXXX) and returned on XXXX XXXX, 2001. The male respondent apparently left Iran on XXXX XXXX, 2001 (XXXX XXXX) and returned on XXXX XXXX, 2003. The male respondent apparently left Iran on XXXX XXXX, 2004 (XXXX) and returned on an unknown date. The male respondent apparently left Iran on XXXX XXXX, 2004 (XXXX) and returned on XXXX XXXX, 2005. The male respondent allegedly went on other trips in XXXX and XXXX in 2005 and 2006, and then apparently returned to Canada.7 [15] The Minister is of the opinion that the respondents gave incorrect information to the Canadian authorities and to the Refugee Protection Division (RPD) in connection with their refugee protection claim. This incorrect information concerns material facts relating to their refugee protection claim. The Minister maintains that it is reasonable to believe that had the member hearing them during their refugee protection claim been aware of these facts, he might have rendered a different decision. The Minister further submits that the actions of the male respondent after he had claimed refugee protection and obtained it in 2002, namely his many return trips to Iran (more than XXXX), undermine his credibility. The Minister maintains that there is no other sufficient evidence that was considered at the time of the first determination to justify refugee protection. [16] In conclusion, the Minister is asking the RPD to conclude that the respondents obtained refugee protection as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. Consequently, the Minister is asking the RPD to vacate the respondents' refugee status. RESPONDENTS' ABSENCE [17] At the hearing held on February 24, 2015, the respondents were absent, having willfully chosen not to appear on the advice of their counsel, Ms. TUTUNJIAN, who stated that she planned to make submissions in the respondents' absence. [18] The panel informed Ms. TUTUNJIAN of the consequences or risks associated with the respondents' absence (they would be unable to answer any questions that the panel or Minister's representative might have) and of the fact that because of their absence, the panel might have to draw inferences as it sees fit with respect to the questions that go unanswered. In spite of everything, counsel confirmed her willingness to carry on at the hearing in the respondents' absence. Thus, the hearing took place without the respondents being present. ADMISSIBILITY AND RELIABILITY OF EVIDENCE [19] During the hearing, Ms. TUTUNJIAN presented the reasons why, in her opinion, the panel should dismiss this application to vacate. Ms. TUTUNJIAN began by questioning the admissibility of certain exhibits filed by the Minister in this case, those being the email from XXXX XXXX of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX dated April 24, 2003 (M-7), the poison pen letter dated XXXX XXXX, 2008 (M-10) and the three emails sent, presumably, by Mr. XXXX in April 2008 (M-14, M-15 and M-16). [20] According to Ms. TUTUNJIAN, all these exhibits should be considered inadmissible or unreliable by the panel, for a variety of reasons. Exhibit M-7 should be considered unreliable, since this is a redacted document on which many pieces of information were deliberately concealed or hidden. Exhibit M-10 should be considered inadmissible by the panel, since this is an anonymous poison pen letter and there is no guarantee that the information contained therein is truthful. Lastly, the emails (M-14, M-15 and M-16) could have been written by someone other than Mr. XXXX, and we also could be dealing here with another email account. [21] In the case at hand, the panel finds that under section 170 of the IRPA, it is open to the panel to accept the exhibits submitted by the Minister, including exhibits M-7, M-10, M-14, M-15 and M-16. The panel is not bound by the rules of evidence and can receive any evidence that it considers credible or trustworthy. Thus, the panel accepts the exhibits submitted by the Minister, despite Ms. TUTUNJIAN's objections. However, the panel reserves the right to grant probative value to this evidence as it sees fit. RESPONDENTS' ACKNOWLEDGEMENTS [22] At the very start of the hearing, Ms. TUTUNJIAN made the following acknowledgements on behalf of the respondents (since they were absent): - Not contesting that Mr. XXXX stayed several months, even several years, in Japan. - Not contesting that he has a criminal record, in light of his arrests in XXXX and XXXX. - Not contesting that Mr. XXXX travelled to Iran a number of times, even after obtaining refugee status in 2002. ANALYSIS [23] Pursuant to subsection 109(1) of the IRPA, the panel must first determine whether or not the decision granting refugee status to the respondents was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. [24] Given the respondents' above-noted acknowledgements via counsel (Ms. TUTUNJIAN), the panel considers that the respondents misrepresented material facts relating to a relevant matter, that is, Mr. XXXX's physical presence in Japan during the 1990s, prior to his arrival in Canada in 2001, as well as his criminal record in XXXX. The panel is satisfied that had the member who presided over the hearing on March 25, 2002, been apprised of these misrepresentations or of these new facts, he most likely would have wanted to broach the issue with the claimant(s) during the hearing. [25] The credibility of refugee protection claimants is central to any analysis conducted as part of a refugee protection claim. It is clear that the member would have considered the male respondent's previous stays in Japan along with the fact that he had previously been arrested and convicted of criminal offences. He also could have been expected to question the male claimant's various trips and stays outside Iran. Did he return to Japan after his problems arose in 2001? Was he in Japan or in another country after 2000, during the period when he claims to have met Ms. XXXX while he was in Iran? [26] The claimants' profile, their past, the fact that Mr. XXXX has one or more criminal records, and their place of residence are all potentially relevant factors in an analysis of a refugee protection claim. In the case at hand, the panel finds that the facts mentioned, namely the male respondent's stay in Japan, his status in Japan and his criminal record(s), constitute relevant factors that should have been considered by the member during the 2002 hearing before the RPD. The criminal record(s) would be examined to determine if the exclusion clause applies. [27] Ms. TUTUNJIAN informed the panel that the respondents had experienced all the events described in their narrative, but that Mr. XXXX had willfully neglected to mention his stay in Japan as well as his criminal record(s) out of fear that his refugee protection claim would be rejected by the Canadian authorities, and that these new facts are not central to their refugee protection claim. [28] The panel finds it unfortunate, of course, that the respondents lied to the Canadian authorities in connection with their refugee protection claim. These omissions or falsehoods would most definitely have raised doubts or questions in the mind of the panel that allowed their claim for refugee status and very possibly steered that panel toward other questions and considerations that might have cast doubt on the respondents' credibility, or even on the very occurrence of some of the events they alleged. [29] The panel considers that in this case, these are relevant factors that should have been addressed by the panel hearing the refugee protection claim. However, the panel must ask itself the following question to determine whether, ultimately, the application to vacate should be allowed: was there other sufficient significant and untainted evidence in first determination to uphold the determination of the first panel? [30] The panel answers that question in the affirmative. In fact, the panel finds that even though Mr. XXXX lied to the Canadian authorities about his stays in Japan and his criminal record(s), the panel that allowed his refugee protection claim might have come to the same conclusion, since the facts alleged in the claimants' refugee protection claim all seem to date from between XXXX 1999 and XXXX 2001. In the case at hand, Mr. XXXX's omissions or falsehoods have to do with events that, it would seem, occurred prior to XXXX 1999. At least, nothing in the evidence presented by the Minister indicates that the male respondent was not in Iran between XXXX 1999 and XXXX 2001. As mentioned above, these are significant, relevant factors that very possibly might have been considered by the member presiding over the hearing in 2002. But there is nothing to suggest that the facts alleged by the claimants to have occurred between 1999 and 2001 could be false or flawed. [31] In light of all the above, the panel finds that other sufficient evidence was considered at the time of the first determination to justify refugee protection for the respondents despite the misrepresentations, as stipulated in subsection 109(2) of the IRPA. CONCLUSION [32] For the reasons mentioned above, the panel dismisses this application to vacate the refugee status granted to XXXX XXXX and XXXX XXXX, pursuant to section 109 of the IRPA. Christian Boissonneault Christian Boissonneault April 24, 2015 Date IRB translation Original language: French 1 Exhibit M-7: Email from XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2003. 2 Exhibit M-9: Document issued by Japanese authorities and translation. 3 Exhibit M-8: Letter from RCMP dated July 10, 2008. 4 Exhibit M-10: Poison pen letter received XXXX XXXX, 2008. 5 Exhibit M-11: Examination of an adult defendant, XXXX, and translation; Exhibit M-12: Investigation reportXXXX XXXX, and translation; Exhibit M-13: Copy of an XXXXpassportXXXX XXXX XXXX. 6 Exhibits M-14, M-15 and M-16: Emails from XXXX XXXX dated April 12, 14 and 15, 2008. 7 Exhibit M-17: Iranian passport #XXXX and translation of Iranian stamps. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / No de dossier de la SPR : MB1-00291 MB1-00292 3 RPD.25.18 (2015.02.23)